| Marlowe v Ferrari of Long Is., Inc. |
| 2009 NY Slip Op 02756 [61 AD3d 645] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Ira Marlowe, Appellant, v Ferrari of Long Island, Inc.,Respondent, et al., Defendant. |
—[*1] Chesney & Murphy, LLP, Baldwin, N.Y. (Gregory E. Brower of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Nassau County (Brandveen, J.), dated December 6, 2007, whichgranted the motion of the defendant Ferrari of Long Island, Inc., in effect, for summary judgmentdismissing all of the causes of action in the complaint insofar as asserted against it except thecause of action seeking a refund of a $2,000 deposit.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted that branch of the motion of the defendant Ferrari ofLong Island, Inc. (hereinafter the defendant), which was to dismiss the plaintiff's cause of actionto recover damages for fraud insofar as asserted against it. "A cause of action to recover damagesfor fraud does not lie when the only fraud charged relates to a breach of contract" (Carle Place Union Free School Dist. vBat-Jac Constr., Inc., 28 AD3d 596, 598-599 [2006]; see Marshel v Farley, 21 AD3d935 [2005]; 34-35th Corp. v 1-10Indus. Assoc., 2 AD3d 711, 712 [2003]; Page v Muze, Inc., 270 AD2d 401[2000]; Germain v Staten Is. Boat Sales, 248 AD2d 507 [1998]). Here, the defendantdemonstrated, prima facie, that it did not make any material representations concerning anintention to perform a duty which is collateral or extraneous to the purported contract betweenthe parties (see Alamo Contract Bldrs. v CTF Hotel Co., 242 AD2d 643 [1997]). Inopposition, the plaintiff failed to raise a triable issue of fact.
Likewise, the court properly granted that branch of the motion which was to dismiss so muchof the complaint insofar as asserted against the defendant as sought punitive damages. Inopposition [*2]to the defendant's prima facie demonstration ofentitlement to judgment as a matter of law on this branch of the motion, the plaintiff failed toraise a triable issue of fact as to whether the alleged conduct was so gross, wanton, or willful, orof such high moral culpability, as to warrant an award of such damages (see Carle PlaceUnion Free School Dist. v Bat-Jac Constr., Inc., 28 AD3d at 598-599; Outside Connection, Inc. v DiGennaro,18 AD3d 634 [2005]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Dillon, Dickerson andLeventhal, JJ., concur. [See 2007 NY Slip Op 34025(U).]